Tym v. Cerno (AI work product)

What happened

Miguel Tym sued Erica Cerno, Dana Flannery and the New Mexico Health Care Authority without counsel. The defendants moved to compel fuller answers to interrogatories and requests for production. One request reached material the plaintiff said was protected, and the dispute drew in the question of whether his use of a generative system in preparing filings was discoverable.

The court had little to work from. As it acknowledged, limited case law exists on the point.

What the court did

The court granted the motion to compel, requiring the plaintiff to amend his responses to specified interrogatories and requests for production within a time limitation of August 2 to August 30, 2024. Request for Production 4 had been withdrawn by the defendants. On Request for Production 10 the court sustained the work product objection but required a privilege log.

On the AI question it adopted Morgan v. V2X, stating that AI interactions do not automatically compromise work product protections, and that if the plaintiff used generative AI to prepare his filings or for hearings in the matter, those interactions are shielded by the work product doctrine.

The privilege log requirement is the practical half of the ruling. Protection was sustained, but not as a reason to say nothing: the material still has to be identified and described.

Where it stands

The order is a magistrate judge's discovery ruling. No objection and no later ruling were located as of September 28, 2026.

It sits on the protective side of the split, with Warner v. Gilbarco and Tate Group Automotive v. Legacy Automotive Capital, and against United States v. Heppner and Shealy v. Seaside Investments. Assini v. Hayward reached a compatible result in state court by quashing a subpoena served on the provider rather than on the party.

The obligation it engaged

The privilege log requirement is Clause 7, contemporaneous record, arriving as an order. A log cannot be written from memory months later with any accuracy. The expert or party who kept a note of each system used and the purpose it served can produce one in an afternoon; the one who did not is reconstructing.

The ruling also engages Clause 6, custody and confidentiality, in that the protection recognized here says nothing about whether the provider retains the material or what its terms permit. Protection from an adversary in discovery is not confidentiality.

Sources

• AI Discovery Database (Damien Charlotin) · September 28, 2026
  Tym v. Cerno

What could not be confirmed

The database lists the systems as ChatGPT and Claude. The order discusses generative AI generically and no finding that the plaintiff used a specific named system was located, so the tool is recorded here as not identified.